Cochlear deaf to unions

The union at the centre of the country’s longest running industrial ­dispute has appealed to Fair Work Australia to force bionic-ear maker Cochlear to engage in “good-faith" bargaining to reach an enterprise agreement and give it better access to workers.

In an important test case, Fair Work Australia will have to define what constitutes “good-faith" bargaining and whether employers must be willing to reach an outcome ­during negotiations.

The Australian Manufacturing Workers Union – which forced Cochlear into collective bargaining in 2009 after its attempt to move to individual contracts failed – said the company was failing to meet the requirements of “good-faith bargaining" under Labor’s Fair Work Act.

The company was undermining the role of the union during negotiations, the AMWU NSW secretary Tim Ayers said.

“Cochlear management is not negotiating with the aim of reaching a deal," he said. “It is disappointing we have to challenge them in court in an attempt to have them take the process seriously."

The Fair Work Act outlines the requirements of good-faith bargaining but employers are concerned this leaves considerable uncertainty and want it examined as part of Labor’s review of the act next year.

The left-wing union sought orders yesterday to force management at the world-leading technology exporter to negotiate in good faith with it over an enterprise agreement covering pro­cess workers at the company’s Lane Cove headquarters.

It also sought orders from Fair Work Australia to make Cochlear give it greater access to union members onsite during working hours for the purpose of negotiating. The AMWU said the company breached legal obligations under the Fair Work Act by failing to do this.

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University of Adelaide professor of industrial relations Andrew Stewart said the case, which would be heard in January, would be a crucial test for the Fair Work tribunal on the boundary between two propositions of Labor’s industrial legislation.

First, the requirement that employers negotiate by “refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining" and second, the part of the act that says there is no obligation for either party to reach an agreement or make concessions during the collective bargaining process.

“The questions will be: are Cochlear meeting the requirements of the act to bargain in good faith, in a way that is neither capricious or unfair? Is Cochlear simply bargaining hard, but in good faith? Or are they bargaining in bad-faith?" Professor Stewart said.

“That will be up to Fair Work Australia to decide and it is something they haven’t had to do yet, which is why both unions and employers will be very interested in the outcome."

“Cochlear is bargaining in good faith with the AMWU and other bargaining representatives," said Mr Smith, who has represented Cochlear management in talks with its staff.

“Cochlear is not prepared to enter into an agreement which would damage its competitiveness. The company has a good relationship with its staff and it provides competitive wages and conditions.

“It is the AMWU which is not bargaining in good faith. The company and the union agreed on bargaining protocols for the agreement negotiations. The union has now decided to repudiate the agreed protocols.

“Under the Fair Work Act, there is no requirement to make concessions during bargaining or to enter into an agreement which a party does not sup­port. This is a vital principle which must be preserved," he said.

“Cochlear is a great Australian success story. It is a very impressive company with a growing workforce in Australia and overseas."

But after two years of negotiations, the union disagreed, saying the company showed throughout negotiations that it had no desire to reach agreement with the union, which represents two-thirds of the workers covered under the agreement.

“Cochlear employees have repeatedly expressed their desire to bargain for a collective agreement through the AMWU," said Mr Ayers. “Cochlear management is denying them that right by treating the bargaining process with contempt."

Blake Dawson industrial relations partner Stephen Woodbury said the case “raises squarely the reach of the good-faith bargaining requirements under the Fair Work Act".

“It is not surprising we are seeing tensions, and Cochlear is an example, because businesses are having to negotiate with unions again," Mr Woodbury said.

“They may have been using individual agreements, or non-union collective agreements for a few years, and now they are back to having to negotiate with unions again. And the scope of what they can negotiate is now wider than it has been before."

Australian Chamber of Commerce and Industry industrial relations spokesman David Gregory said he would closely watch the case as there had been a “smorgsaboard of provisions within the Fair Work Act that have increased union power with little in the way of employers."

“We have significant concerns around the framework of bargaining in the Fair Work Act, things like majority support determinations, forcing reluctant employers to negotiate and what constitutes good-faith bargaining, so this case will be important," Mr Gregory said.

“The rules around bargaining are what we are most keen to see examined under the upcoming review of Fair Work Act."

The Cochlear dispute began in 2007 when the company sought to terminate its enterprise agreement and move to individual agreements with employees. But in 2008, a full bench of the previous industrial tribunal, the Australian Industrial Relations Tribunal, ruled against the company.

The company, when then forced into negotiations with the union over the enterprise agreement by a majority-support ruling by Fair Work Australia in 2009 stipulating they must negotiate.

At one stage, Mr Roberts wrote to staff urging them against embracing the union and has given pay rises of 4 per cent to workers outside of the enterprise agreement. However, Cochlear staff voted 185 to 120 in a secret ballot to have the AMWU represent them in collective bargaining.